Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

18 March 2006

Magic and Realism

I get particularly irritated by a common, and especially insidious, conflation of the false dilemma with the straw-man argument: arguing against labels applied to advocates.1 The source of my ire this morning is this bit of nonsense. Although Professor Gerber accurately points out a problemthe tension between lawyers' obligation to follow the rule of law, particularly in training would-be lawyers, and aspirations for society and the profession (with which, I infer, Professor Gerber does not entirely agree) intended to overcome past misconducthis argumentation and evidence would earn a C- at best on a sixth-grade social studies essay.

Where Professor Gerber (and, for that matter, most of the organized bar) goes wrong is in his failure to distinguish between causes and symptoms. The symptom that is at issue is representation of minorities (of various kinds) in the legal profession. I don't think Professor Gerber somehow thinks this is an inappropriate end, and neither do I care much; instead, he argues that the means chosen by the ABA are inappropriate. It's the "because ofs" and "therefores" that get him in trouble.

On the one hand, Professor Gerber believes that the organized bar and academia are somehow improperly dominated by a straw man he labels "the Left."2

The U.S. Supreme Court's recent decision in Rumsfeld v. Forum for Academic Institutional Rights, Inc. is proof positive of [Federalist Society founder and "conservative law professor" Steven G.] Calabresi's prescience. In that case the Supreme Court "read" and "listened" to the arguments of Leftist law professors only because it was forced to do so: the professors had packaged their political arguments into the form of a lawsuit that threatened the military's ability to recruit the best and the brightest from the nation's law schools in a time of war. But though the Court had to read and listen to the law professors' arguments, it did not have to agree with them. And it most certainly did not: not even the liberal members of the Court penned a sentence of support for the law schools. In a unanimous opinion for a plainly impatient Court, Chief Justice John G. Roberts, Jr., essentially called the legal academy's litigation frivolous. The gist of the law schools' case was that their First Amendment rights are violated by the Solomon Amendment's requirement that they cannot receive federal money unless they allow military recruiters to interview their students, just as civilian recruiters may.

(typography and paragraphing corrected for clarity) This passage raises far more questions about Professor Gerber's own commitment to the rule of law than it does about the purportedly leftist legal academy. For example, he uses the technical term "frivolous" to describe "the legal academy's litigation." This is just another invocation of the Law of True Names that ignores one tiny little factor: If the litigation was truly "frivolous," one might think there would have been a motion to that effect in the lower court, and a decision on that motion. SeeFed. R. Civ. P. 11(PDF). Professor Gerber egregiously misuses a technical term with the apparent intent of implying that parties holding opposing views do so in bad faith without support from any legal theory or view of the factsparticularly when he provides not a single example or citation of authority supporting his position on this issue. That is far from the only such rhetorical excess in Professor Gerber's essay. However important that may be, it is less important than the substantive dishonesty.

Just what does a commitment to eliminating discrimination against a minority have to do with "Left" and "Right"? Even if one accepts (or rejects) the "professoriat"'s argumentand I've seldom seen an unrulier herd of cats than the legal academy (not even the MLA)why is that argument "Leftist"? Probably because, in the past, the "Right" (through the actions of its most prominent members) made itself more closely identified with some rather invidious discrimination. Therefore, anyone who opposes discrimination of any kind today is necessarily a "Leftist." "Leftists" are bad, because their other beliefs would "allow Communist infiltration, Communist indoctrination, Communist subversion and the international Communist conspiracy to sap and impurify all of our precious bodily fluids." Therefore, expressing an opinion that the military's policy of discriminating on the basis of sexual orientation (as opposed to the historical imperatives involving race, ethnicity, and gender) ought not be supported in law schools is the equivalent of advocating fluoridation of the nation's water supply.3

On the other hand, the "solution" to the problem in question is grossly inadequate no matter whose arguments one accepts. At risk of being pilloried myself, I would point to the organized barand particularly to the hazing ritual known as the "bar exam"as being most at fault in perpetuating any discrimination remaining in the system. Anyone who claims that admission to the bar is dominated by "Leftists" from the American Bar Association hasn't been paying much, if any, attention. In the particular context of Rumsfeld v. FAIR, we're dealing with the historical animosity of the white-male-Protestant-dominated military establishment toward homosexualsanimosity with little or no basis in reality.4 The implicit transfer of the type of discrimination at issue between race and gender is another disturbing aspect of Professor Gerber's screed; lurking beneath it all lies Eugene Debs and an unenacted variety of the Alien and Sedition Act (or its WWI-era successor).

There's that demonization of the Left again. I just can't seem to escape it in this context. But then, my own rhetoric is not without purpose; my invocation of magic and religious imperatives does have another point. The difference is that I am not misusing the terms and methods of argument of my profession.

The hyperrational might think I'm referring to Freud, or perhaps to some of his competitors; others might believe that I'm referring to Benjamin Whorf (and the "weak" version of the Whorf Hypothesis). In a sense, both views are accurate. However, my foundational reference is to Sir James Frazer's The Golden Bough, and to the power of the True Name in systems of magic in world history. Spotting the self-defeating irony in comparing the purportedly rationalistic argumentation described in the rest of this entry to an irrational mythic belief is left as an exercise for the student.

It might do conservative critics of "leftist hegemony" some good to readand read carefullyOrwell's Homage to Catalonia. One might discover that the Left spends a lot more of its energy on struggles against other Leftists than it does against the causes that made it "the Left."

If this seems slightly hysterical, or feels wrong, keep in mind that it's only an inversion of the argumentation method being used to criticize the "Leftist" academy.

Note to potential critics encountering this blawg for the first time: I was a career line officer before becoming a lawyer, and spent the better part of a decade in command assignments. I think that gave me just a little bit more opportunity to have observed the military establishmentthe senior uniformed leadership, the senior civilian leadership, and the senior defense-industry leadershipthan one might otherwise expect. That establishment is one of the best examples of herd behavior overwhelming the better angels of individuals' nature that one could possibly imagine.

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Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

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